Fayyazuddin And Anr. vs Delhi Waqf Board & Anr.
2013 Latest Caselaw 4977 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                       REW. PET. 690/2012 in CM(M) 591/2012

                                                Date of Decision: 29.10.2013

FAYYAZUDDIN AND ANR.                                    ......PETITIONERS

                                Through:    Mr.S.D.Ansari, Mr.I.Ahmed,
                                            Advocates.

                                       Versus

DELHI WAQF BOARD & ANR.                                ......RESPONDENTS

                                Through:    None.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. This review petition under Order 47 read with Section 151 CPC

is filed by the petitioners seeking review of the order dated

29.08.2012, whereby CM(M) 591/2012 filed by them against the order

dated 7.2.2012 of Addl. District Judge-cum-Waqf Tribunal, New Delhi

passed in suit No. 45/2009, was dismissed.

2. The instant review petition is filed stating that some of the points

submitted by the petitioners have not been considered while passing

the said order dated 29.08.2012 by this court. It is submitted that the

points which have not been considered are thus:

1. The petitioners being the Muslims, are the beneficiary

of the Waqf property, and thus, could not be evicted

therefrom.

2. The petitioners had taken up the suit premises from

one Syed Iqbal Hussain, the previous tenant in the suit

premises, and thus, could not be termed as an encroacher, but,

at the most, sub-tenants.

3. As the petitioners are not the encroachers, the

proceedings could not be initiated against them under Section

86 of the Waqf Act.

4. The petitioners had deposited the rent in the court of

Rent Controller with effect from 01.11.2009 to 31.10.2012.

3. I have heard the learned counsel for the petitioners and perused

the order under review as also the material placed on record. By way

of present review petition, the petitioners are trying to re-argue the

entire main petition, which was dismissed vide order dated 29.08.2012.

It would be seen that the petitioners' own case was that they had been

in possession as tenants in the said premises from the year 1993 and

were paying the rent to the Waqf Board. This aspect has been

elaborately dealt with in the order of 29.08.2012 and a concurrent

finding of fact has been recorded by this court, endorsing the view of

the Waqf Tribunal. It has been specifically recorded that the

petitioners had applied for grant of new tenancy only on 18.07.1996,

but the tenancy in their favour was never granted by the respondents.

The deposit of rent by the petitioners has also been noted, as having

been made on the notice got issued from the respondents. After the

issue of show-cause notice dated 15.02.2007, the petitioner

Fayyazuddin appeared before the competent authority on various dates,

but, could not show any authority under which he was occupying the

suit premises. Even in the reply dated 11.06.2007, the petitioners had

only stated that they want to deposit the rent of the suit premises with

the respondents. In any case, merely the deposit of rent under Section

27 of the Delhi Rent Control Act, does not create tenancy in favour of

the depositors. It has been specifically noted that the respondent No. 1

being a statutory authority does not create tenancy in the way that is

sought to be assumed by the petitioners. Simply by filing an

application for creation of new tenancy by the petitioners, tenancy

could not be said to have been created in their favour. The possession

of the suit premises by the petitioners, by any means, could not be said

to be lawful. The Waqf Act, 1995 does not provide for the

consequences of creation of any sub-tenancy etc. It forbids alienation

of the Waqf property, without the sanction of the Board, as to be void.

Even assuming that the petitioners have taken the suit premises from

Syed Iqbal Hussain, as alleged, the alienation, without there being

anything on record to justify, or approval from the Waqf Board, could

not be said to be lawful. The possession of Waqf property by the

petitioners would be nothing, but unauthorized occupation or the

encroachment therein, which is liable to be removed by the procedure

provided under Section 54 of the Waqf Act. The said procedure

having been followed, the eviction order as passed by the Estate

Officer was rightly upheld by the Waqf Tribunal, as the same was not

suffering from any infirmity. Further, merely because the petitioners

are Muslims, they cannot be said to be entitled to claim themselves to

be the beneficiaries of the suit premises, by unauthorizedly occupying

the same. All the points urged in the instant petition having been

adequately dealt with in the order dated 29.08.2012, there is nothing

warranting review of the said order. The review petition being without

any merit is hereby dismissed.

M.L. MEHTA, J.

OCTOBER 29, 2013 akb